Case Preview: South Lanarkshire Council v The Scottish Information Commissioner

On 8 July 2013, Lords Kerr, Wilson, Reed, Carnwath and Lady Hale heard an appeal against the judgment of the Court of Session (Inner House, Extra Division) in South Lanarkshire Council v The Scottish Information Commissioner[2012 CSIH 30]. The case concerns the freedom of information and explores the parameters of lawful data processing.

Issues

The issues considered were:

Whether an investigation by the Scottish Information Commissioner, who is responsible for enforcing Scotland’s laws on freedom of information, breached the principles of natural justice; and

Whether the Commissioner and subsequently the Inner House of the Court of Session applied Condition 6 of Schedule 2 to the Data Protection Act 1998 (“Condition 6”) correctly.

Facts

Mr Irvine wrote to South Lanarkshire Council to request information from board minutes and reports concerning the basic hourly rate of Land Service Operators of a particular grade on ten occasions. Mr Irvine was heavily involved with Action 4 Equality Scotland (“A4ES”), a company involved in the promotion of equal pay, and also wrote an online blog to further this cause. Mr Irvine sought the Information in order ultimately to prove that traditional low-skilled male jobs in land services such as gardening and refuse work were paid more than traditional female jobs which had an equal or higher level of skill involved.

The Council refused to provide the Information on the basis that under the Freedom of Information (Scotland) Act 2002, s 38, the Information constituted personal data. The Council therefore believed that disclosure of the Information would breach the first data protection principle of the Data Protection Act 1998, which requires personal data to be lawfully and fairly processed.

Under s 47(1) of the 2002 Act, Mr Irvine applied to the Commissioner for a decision as to whether the Information should be disclosed.

Commissioner’s decision

In a decision dated 17 March 2011, the Commissioner ordered disclosure of the Information requested by Mr Irvine. The Commissioner referred to Condition 6, which allows personal data to be lawfully processed if the processing is necessary for the purposes of legitimate interests pursued by the party to whom the data is disclosed, except where the processing is unwarranted by reason of prejudice to the rights and freedoms of legitimate interests of the data subjects.

The Commissioner applied Condition 6 as follows:

Mr Irvine demonstrated legitimate interests in the Information due to his connection with A4ES. Furthermore, the Information had a legitimate wider interest to those who worked for the Council and the wider public;

Disclosure of the Information was necessary to meet Mr Irvine’s legitimate interests as there was no viable alternative means of achieving these interests which would interfere less with the privacy of the data subjects; and

Mr Irvine’s legitimate interests outweighed the legitimate interests of the data subjects. The data subjects were unlikely to be identified from the Information which, in any event, would not cause them significant distress.

The Commissioner’s conclusion, therefore, was that disclosure of the information to Mr Irvine would have been consistent with Condition 6 and the Council had accordingly failed to comply with Part 1 of the 2002 Act. The Council appealed the decision at the Court of Session.

Court of Session (Inner House, Extra Division) Judgment

The Council’s appeal against the Commissioner’s decision was based on the following three grounds:

There had been a breach of natural justice as the Commissioner had considered certain additional submissions from Mr Irvine and did not alert the Council of their contents;

The Commissioner had misdirected himself in law by failing clearly to identify the nature of Mr Irvine’s legitimate interests under Condition 6 in obtaining the information sought; and

The Commissioner had failed to consider whether the Information was necessary under Condition 6 for the purposes of Mr Irvine’s legitimate interests.

The Court of Session refused the appeal, responding to each of the above points as follows:

In the light of earlier correspondence passing between the Council, Mr Irvine and the Commissioner, the Court was satisfied that most, if not all, matters raised by Mr Irvine and relied on by the Commissioner were known to the Council;

As a freelance writer who published a blog specialising in issues of equal pay with a strong connection to A4ES, the Court commented that Mr Irvine’s legitimate interests were clearly present. Moreover, Mr Irvine’s own interest coincided with a widespread public interest in the matter of gender equality, with the disclosure of such information vital in achieving transparency on the issue of equal pay; and

Whilst the Commissioner had viewed the issue of necessity as being linked with proportionality, on whatever test applied it was clear that necessity was made out.

Supreme Court appeal

The Council appealed to the Supreme Court and in advance of the hearing, Mr Irvine commented that it could prove to be a “big day for equal pay and freedom of information.” It will be interesting to see if he is right.

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